Grossly Negligent Homicide

The grossly negligent homicide under § 81 StGB occurs when someone causes the death of another person through exceptionally and conspicuously negligent conduct. It is a qualified form of negligence, in which the required due care is violated to a particularly severe degree. Typical situations are those where the danger to life was clearly recognizable and yet elementary safety rules were disregarded, such as excessive speed in wet conditions, driving under the influence of alcohol, or ignoring obvious dangers in the workplace.

objective elements of the offence

The objective elements of the offense require that the death of a person is based on a particularly severe breach of duty of care. The conduct must obviously deviate from what a prudent and conscientious person would have done in the same situation.

Steps of legal assessment

• Act or omission: massive disregard of clear safety rules or conscious disregard of evident risks.
• Result of the act: death of another human being.
• Causality: The death would not have occurred without the negligent conduct.
• Connection to breach of duty: The violated duty should specifically prevent the outcome that occurred.
• Objective attribution: The outcome must be attributable to a legally disapproved risk. Autonomous victim behavior or atypical third-party causes can exclude attribution.

Select Your Preferred Appointment Now:Free initial consultation

Distinction from other offences

• § 75 StGB – Murder: intentional killing with calm deliberation, planned, and with particularly reprehensible motives.
• § 76 StGB – Manslaughter: intentional killing in an extraordinary emotional state, without cold-blooded planning.
• § 80 StGB – Negligent Homicide: simple negligence; a moment of inattention without particularly severe misconduct.
• § 81 StGB – Grossly Negligent Homicide: particularly severe breach of duty of care with significantly increased blameworthiness; the danger was clearly recognizable but was consciously ignored or completely misjudged.
• § 86 StGB – Bodily Injury Resulting in Death: intentional bodily injury, the consequence of which is death.
• § 88 StGB – Negligent Bodily Injury: breach of duty of care resulting in injury, but without death.

Important Distinction:
For § 80 StGB, simple negligence is sufficient. § 81 StGB, however, requires a grossly negligent, almost indifferent disregard of elementary safety rules. It is crucial that the danger was obvious and foreseeable, but the perpetrator nevertheless accepted it or completely disregarded it.

Burden of proof and evaluation of evidence

The public prosecutor’s office bears the burden of proof for breach of duty of care, causality, connection to breach of duty, and attribution.
The court evaluates all evidence, especially technical, accident analysis, or medical expert opinions.
The accused person does not have to prove anything, but may point out alternative sequences of events or doubts about foreseeability.

Typical Evidence:
Accident reports, tachograph data, telemetry, witness statements, safety regulations, documentation, video recordings, or medical records.

Select Your Preferred Appointment Now:Free initial consultation

Practical example

• Significantly excessive speed in poor weather conditions.
• Disabling safety devices on machines.
• Working on roofs without safety measures despite existing warnings.
• Driving a vehicle while intoxicated with fatal consequences.

subjective elements of the offence

Gross negligence exists when the perpetrator acts objectively negligent and subjectively highly blameworthy. The fatal outcome must be foreseeable and avoidable for any average reasonable person. The standard is what a prudent person would have done in the same situation.

Select Your Preferred Appointment Now:Free initial consultation

Unlawfulness and justifications

• Self-defense: Present, unlawful attack; defense must be necessary and proportionate. A retaliatory act after the attack has ended is not self-defense.
• Excusable Necessity: Immediate danger, no less severe means, overriding interest. Also applies to spontaneous rescue actions if a danger could only be averted by a breach of duty.
• Effective Consent: Requires capacity to make decisions, information, and voluntariness. Consent to one’s own death is legally irrelevant.
• Legal Authority: Interventions with legal basis and proportionality, for example, in the context of official acts, technical surveillance, or police measures.

Burden of Proof

The public prosecutor’s office must show beyond reasonable doubt that no justification exists.
The accused person does not have to prove anything; it is sufficient to point out specific circumstances that can raise doubts.
The principle “in dubio pro reo” – in doubt, for the accused – applies.

Culpability and mistakes

• Mistake of Law: Only excused if the mistake was unavoidable. Everyone is obliged to inform themselves about the legal situation.
• Principle of Guilt: Only those who act culpably are punishable; negligence requires foreseeability and avoidability of the outcome.
• Lack of Criminal Responsibility: No guilt in case of severe mental disorder or pathological impairment of control capacity. If there are indications, a forensic psychiatric report must be obtained.
• Excusable Necessity: Applies in cases of unreasonableness of lawful conduct in an extreme predicament – for example, if providing assistance or rescue would seriously endanger one’s own life.
• Putative Self-Defense: A mistake regarding the existence of a justification excludes intent, but leaves negligence unaffected if the breach of duty of care persists. Here, too: Anyone who acts in a recognizably risky manner cannot invoke supposed justifications.

Extinction of punishment and diversion

A withdrawal from attempt is excluded, as it is not an intentional offense.

A diversionary disposition is only considered if the breach of duty is on the borderline of simple negligence and the accused demonstrably takes responsibility, for example, through reparation, apology, or support for the bereaved.

In cases of conscious disregard of safety regulations, intoxication, fatigue, or repeated violations, diversion is excluded.
In all other cases, it can only be applied in narrowly defined situations if the public interest in a judicial penalty is considered low.

Sentencing and consequences

The severity of the penalty depends on the intensity of guilt and the specific circumstances of the offense. The court examines how foreseeable and avoidable the danger was, whether the breach of duty occurred consciously, grossly negligently, or recklessly, and what consequences resulted. It is crucial whether the conduct was due to temporary inattention or persistent indifference to elementary safety rules.

Aggravating circumstances exist particularly when

• the offense was committed under the influence of alcohol or drugs,
• a clear safety regulation was consciously disregarded,
• similar violations or warnings have occurred previously, or
• an irresponsible attitude towards risk was evident.

Mitigating circumstances include, among others,

• a clean record,
• a full confession,
• demonstrable reparation for damages, or
• contributory negligence of the victim.
  Also, exceptional psychological stress or an excessively long duration of criminal proceedings can be considered as mitigating factors.

Austrian criminal law provides for the daily rate system for fines. The number of daily rates depends on the severity of guilt, and the individual daily rate depends on the income situation. This is to ensure that a fine is comparably noticeable for all affected parties. If the fine is not paid, it can be converted into a substitute custodial sentence.

A custodial sentence can be wholly or partially suspended if it does not exceed two years and there is a positive social prognosis. This means: The convicted person remains at liberty but must prove themselves during a probationary period of one to three years. If all conditions are met, the sentence is considered finally suspended after the probationary period.

The court may also issue directives, such as for reparation for damages, participation in therapy, or safety and traffic training courses

and order probation assistance. These measures serve to prevent recidivism and achieve lasting stabilization of the living environment.

Select Your Preferred Appointment Now:Free initial consultation

Penalty Framework for § 81 StGB

• Custodial sentence of up to three years.
• In cases of multiple fatalities or particularly dangerous conduct (e.g., driving while intoxicated, ignoring dangers to life) six months to five years custodial sentence.
• If death is caused under particularly serious circumstances, the penalty can be close to the maximum limit.

Thus, § 81 StGB is significantly above the penalty framework of § 80 StGB, but still accounts for the lack of intent.

Imprisonment and (partially) suspended sentence

Section 37 StGB: If the statutory penalty provides for imprisonment of up to five years, the court should impose a fine instead of a short prison sentence of no more than one year.

Section 43 StGB: A suspended prison sentence may be imposed if the sentence does not exceed two years and the convicted person is deemed to have a favourable social prognosis. The probation period ranges from one to three years. If it is completed without revocation, the sentence is considered finally suspended.

Section 43a StGB: Partial suspension allows a combination of unconditional and conditional parts of a sentence. For prison terms of more than six months and up to two years, part of the sentence may be suspended or replaced by a fine of up to seven hundred and twenty day-fines if this appears appropriate in light of the circumstances.

Sections 50 to 52 StGB: The court may also issue instructions and order probationary supervision. Typical instructions concern restitution, therapy, contact or residence prohibitions, and measures aimed at social stabilisation. The objective is to prevent further offences and to promote lasting compliance with the law.

Jurisdiction of the courts

Subject-matter jurisdiction: The Regional Court as a single judge is generally competent.
In particularly serious cases, such as multiple fatalities or an increased penalty framework, the lay assessors’ court decides.

Venue: The court of the place of offense or place of outcome is competent, subsidiarily the residence or place of presence of the accused person.

Appellate levels: Against judgments of the Regional Court, an appeal to the Higher Regional Court is permissible; against judgments of the lay assessors’ court, an appeal for nullity to the Supreme Court is additionally permissible.

Civil claims in criminal proceedings

In cases of grossly negligent homicide, the survivors can join the criminal proceedings and assert civil claims, particularly for funeral costs, loss of maintenance, pain and suffering compensation, or emotional distress.
The private party joinder suspends the civil statute of limitations to the extent of the asserted claim.
After the conclusion of the criminal proceedings, the period runs anew, insofar as the claim was not fully awarded.

A structured reparation for damages or an agreement with the relatives can have a mitigating effect on the sentence if it is carried out voluntarily, early, and demonstrably documented.
However, in cases of massive breaches of duty, this circumstance regularly loses its mitigating effect on the sentence.

Overview of criminal proceedings

• tart of investigation: formal suspect status upon concrete suspicion; from that point onward, full rights of the accused apply.
• Police / Public Prosecutor: the public prosecutor directs the proceedings, the criminal police conduct the investigation; objective: dismissal of the case, diversion, or indictment.
• Interrogation of the accused: prior instruction on rights; involvement of a defense attorney leads to postponement; right to remain silent remains unaffected.
• Access to the case file: available at the police, public prosecutor’s office, or court; also includes evidence items (insofar as the purpose of the investigation is not jeopardized).
• Main hearing: oral taking of evidence and judgment; decision on civil claims joined to the criminal proceedings.

Select Your Preferred Appointment Now:Free initial consultation

Rights of the accused

• Practical access to files: investigation and trial records; access by third parties is restricted to protect the accused.
• Information & defense: right to notification, legal aid, free choice of defense counsel, translation assistance, and submission of evidence motions.
• Silence & counsel: right to remain silent at any time; if a defense attorney is requested, the interrogation must be postponed.
• Duty to inform: prompt notification of suspicion and rights; exceptions only permitted to safeguard the purpose of the investigation.

Your Benefits with Legal Assistance

Proceedings for grossly negligent homicide are among the most serious charges in the area of negligence offenses. Often, tragic events lie behind them, resulting from a moment of irresponsible carelessness or a conscious disregard of safety rules. The legal assessment depends on whether the danger was clearly recognizable and easily avoidable – and whether the accused nevertheless ignored or misjudged it. Even small discrepancies in technical expert opinions, accident analysis reconstructions, or witness statements can decide guilt or acquittal.

Therefore, early legal representation is crucial to precisely clarify the actual course of events, secure evidence in time, and prevent an overestimation of the degree of fault. The distinction between simple and gross negligence is often fluid and requires a careful legal analysis of each individual case.

Our law firm

• examines whether there is actually a gross breach of duty of care or a tragic accident without criminal relevance,
• analyzes technical, medical, and traffic analysis expert opinions for plausibility and probative value,
• accompanies you throughout the entire investigation and court proceedings,
• collaborates with recognized experts to objectively present causes, reaction times, and danger progressions,
• develops a tailored defense strategy that realistically classifies breach of duty, foreseeability, and individual circumstances,
• and resolutely safeguards your rights against police, public prosecutor’s office, and court.

An experienced criminal defense ensures that human errors, situational overload, or spontaneous reactions are not prematurely classified as gross negligence. It ensures that the act is viewed in its actual context and legally balanced. Thus, you receive a factual, well-founded, and situation-specific defense that takes your perspective seriously and specifically aims for a just verdict.

Select Your Preferred Appointment Now:Free initial consultation

Frequently Asked Questions – FAQ

Select Your Preferred Appointment Now:Free initial consultation